This is an update to our July 17, 2020 article addressing the July 15, 2020 orders issued by Governor Wolf and the Pennsylvania Department of Health “directing mitigation measures” in response to a reported rise in COVID-19 cases in Pennsylvania.
As explained in that prior article, both orders included the following mandate requiring telework: “Unless not possible, all business are required to conduct their operations in whole or in part remotely through individual teleworking of their employees[.]”
The plain text of these orders generated confusion for many Pennsylvania employers as the scope of the teleworking mandate was unclear. Accordingly, in our article, we called for Pennsylvania leadership to provide necessary guidance to resolve that confusion and enable Pennsylvania employers to understand whether they were being ordered to utilize telework arrangements “in whole” to the extent possible, or whether reducing the number of workers through “in part” telework arrangements would suffice.
Subsequent to the publishing of our July 17 article, the Pennsylvania Department of Health issued guidance and FAQs providing some clarity concerning the telework requirement.
The July 17 guidance and FAQs more clearly state that businesses are required to conduct their operations remotely through telework to the extent possible. The guidance and FAQs also state that, where telework is not possible, employers are permitted to conduct in-person business operations, provided they comply with the business safety order, the worker safety order, and the masking order. The guidance, however, still does not fully explain the meaning of the “in whole or in part” provision of the July 15 orders. That said, Pennsylvania businesses looking to conform their operations to the July 17 guidance should revisit their use of in-person operations when telework arrangements can be used to accomplish the work. Further, Pennsylvania businesses that are able only to conduct telework “in part” may wish to confer with legal counsel to review whether such arrangements comply with the July 15 orders and the July 17 guidance.
Confusion or frustration by Pennsylvania employers attempting to conform their operations to state government mandates is entirely understandable. Although employers will need to operate with reasonable flexibility until the end of the pandemic, Pennsylvania leadership would greatly assist Pennsylvania businesses in tackling those challenges by rolling out orders and guidance that impact the workplace in a more comprehensive and coordinated manner.
In the case of the July 15 orders, the clarifying guidance came out after the new orders took effect on July 16, 2020, and the guidance still leaves certain questions about the phrase “in whole or in part” unaddressed. Given the crisis nature of a pandemic, Pennsylvania leadership may at times believe it to be necessary to issue orders without the benefit of interpretive guidance. But this piecemeal approach to issuing orders and guidance – particularly those having such a significant impact on the workplace –unnecessarily imposes heightened challenges for employers and employees alike.
In the interest of avoiding, or at least reducing, the whipsaw effect that employers and employees have had to endure, we encourage our state leadership to issue its orders and guidance with more clarity and in a better coordinated manner by publishing any guidance and FAQs simultaneously with the associated orders and avoiding discrepancies among them.